The Justice Department wrote in a brief filing that it would appeal the decision to the 11th Circuit Court of Appeals.
In a separate and simultaneous session filing in court, prosecutors asked Cannon to suspend his September 5 decision on two key points: his order to temporarily halt a significant part of the FBI’s investigation into potential mishandling of classified information, and to allow a special handler to review classified material which is among documents seized as part of a court-authorized search of Trump’s Mar-a-Lago club on August 8.
Ultimately, the Justice Department said a special master could be appointed, but argued that the judge should bar the special master from reviewing classified documents. The special master would still be able to sort through personal documents and other items the FBI has also seized, setting aside documents if necessary, according to the record.
Prosecutors wrote that allowing a special handler to review the classified documents “would cause the most immediate and serious harm to the government and the public,” noting that these documents have already been moved to a secure facility, separate from the rest. of the seized Trump. papers.
And they argued that by barring investigators from using classified documents found in August until a special handler clears them, Cannon could harm national security by hampering the Justice Department’s ability to retrieve any other classified documents that may still be outstanding.
Banning the FBI from using the classified documents in the investigation “could impede efforts to identify the existence of additional classified documents that are not properly stored, which in itself poses an ongoing national security risk,” they said. writes prosecutors – the first time they have suggested in court filings that there may be more unsecured classified material they have yet to find.
Trump’s legal team pleaded in federal courthouse in West Palm Beach last week that a special master’s degree is needed to determine whether any of the documents — more than 100 of which are classified — should be shielded from investigators because of attorney-client or executive privilege. They also said an independent outside expert would build “confidence” in the Justice Department’s criminal investigation.
Justice Department lawyers told Cannon they have already sorted through the documents, using a “screening team” to separate more than 500 pages of material potentially covered by solicitor-client privilege. This arrangement was approved by the US Magistrate Judge who authorized the search warrant for Mar-a-Lago, Trump’s Florida home and private club, after the the government tried for months to get Trump and his advisors to return all government documents kept at the property.
The Department of Justice also argued that a former president cannot assert executive privilege after leaving office and that it is not possible for a part of the executive to invoke the privilege to protect documents of another party.
But even if Trump could assert executive privilege, the Justice Department argued in its Thursday appeal, the government’s “demonstrated and specific need” for access to classified documents would outweigh that privilege. . Government prosecutors also said Trump clearly did not need to retain possession of those classified documents.
“Among other things, the classified documents are the very subject of the government’s ongoing investigation,” the filing said.
In its initial decision, Cannon said the Office of the Director of National Intelligence may continue its analysis of the possible national security risk posed by the removal from government custody of classified documents, some of which contain the most critical intelligence-gathering secrets. most sensitive of the government. .
But Justice Department lawyers said Thursday it was difficult to separate the FBI investigation from the intelligence review. They said they were unsure of the “limits” and “implications” of the court order, prompting the intelligence community to temporarily suspend its review with criminal investigators.
The Washington Post reported on Tuesday that among the documents seized by the FBI was a describing the military defenses of a foreign government, including its nuclear capabilities, according to people familiar with the situation who spoke on condition of anonymity. The people also said the documents seized detailed top-secret US operations that are so closely watched that many top national security officials are kept in the dark about them.
While the appointment of a special master means investigators cannot use the documents they have seized until the outside expert clears them, an appeal of Cannon’s decision bears its own legal risks for the Ministry of Justice.
The appeal process could take longer than any document review by the Special Captain. And there’s no guarantee the government would prevail, particularly if the case were to make it to the Supreme Court, which has a 6-3 conservative majority that includes three Trump appointees.
This is a developing story. It will be updated.